EMILY WASSERMANN—On October 6th, new Department of Health and Human Services (HHS) regulations went into effect broadening the scope of exemptions to the Affordable Care Act’s contraception mandate. The requirement that for-profit entities be closely held in order to claim exemption has been eliminated, meaning large publically traded companies can now choose not to follow the mandate for religious reasons. Universities will now be able to deny coverage to students. Moral conviction not grounded in religion can now serve as a reason to deny care as well. Several states (Massachusetts, California, Washington , and Pennsylvania so far, but 18 state Attorney Generals signed a letter opposing the regulations), organizations (ACLU and Center for Reproductive Rights), and even private citizens have filed lawsuits challenging these regulations. The suits allege the regulations violate the First Amendment Establishment Clause, the Fifth Amendment Equal Protection Clause, and the Administrative Procedure Act (APA).
Under the First Amendment, the government may not establish a state religion. The new regulations heavily favor certain religious and moral beliefs over others and privilege the infliction of those beliefs on employees and students who do not share them. This is not about religious freedom but rather about promoting the administration’s own views on the issue through selectively empowering third parties who share them.
The equal protection argument is simple: this regulation decreases the availability of health benefits based on gender because contraceptives are prescribed for women.
Under the APA, rules must undergo a notice and comment process. The public is supposed to get advanced notice of the rules and 30 days to comment on them before they go into effect. In this case, the rules went into effect on October 6th, the same day they were announced, and they were not even officially published on the HHS site until the 13th. The administration claims it had good cause for skipping the procedural safeguards of the APA, citing pending lawsuits against the mandate and possible dangers of contraception. While the administration has settled several pending lawsuits since promulgating the new rules, its claims of safety concerns are not supported by medical science according to the head of the American College of Obstetricians and Gynecologists. Because the regulations affect the rights and duties of women and employers and contain serious value judgments, they should have undergone notice and comment procedures and given the people affected a chance to make their opinions heard.
The APA also substantively requires that rules not be arbitrary or capricious. The regulations rely on studies that express minority views in the medical community, for example repeatedly citing the lone dissenter of the 16-member commission that came up with some of the original recommendations. The regulations also attempt to cast doubt on the proposition that birth control decreases unintended pregnancies. To many, the causality seems so obvious that it should need no proof, but indeed plenty is available.
These regulations, together with the Citizens United decision striking limits on corporate political speech, demonstrate a concerning trend in the prioritization of First Amendment freedoms of corporations over the voices of individuals they may drown out.
Employers are allowed to object specifically to birth control methods that some research shows may prevent implantation of an embryo (although research now suggests even Plan B does not function in this way) or to the mandate generally. Instead of disentangling this by finding or conducting scientific research, the regulations allow employers to object to some or all forms of contraceptive care. The administration needs to distinguish contraception, which is preventative, from the small minority of treatments that may function post-fertilization and thus give rise to legitimate religious/moral concerns. Blanket exemptions based on vague notions of morality do a disservice to women’s health and religious freedom alike.